Karnataka High Court
Smt Rathnamma vs R Krishna Singh on 5 April, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.5568 OF 2022 (GM-CPC)
BETWEEN:
1. SMT. RATHNAMMA
W/O LATE M. VENKATASWAMY
AGED ABOUT 45 YEARS.
2. SMT. PALLAVI
D/O LATE M. VENKATASWAMY
AGED ABOUT 28 YEARS.
3. SRI. M. SHASHIKUMAR
S/O LATE M. VENKATASWAMY
AGED ABOUT 23 YEARS.
ALL ARE RESIDING AT
BYPASS ROAD,
NEAR OLD PETROL BUNK,
SIDLAGHATTA TOWN,
CHIKKABALLAPUR DISTRICT-562 105.
...PETITIONERS
(BY SRI. CHETHAN A.C., ADVOCATE)
AND:
R. KRISHNA SINGH
S/O LATE VENKU SINGH
AGED ABOUT 68 YEARS
R/AT BYPASS ROAD,
NEAR OLD PETROL BUNK,
2
SIDLAGHATTA TOWN,
CHIKKABALLAPUR DISTRICT-562 105
....RESPONDENT
(BY SRI. CHANDRASHEKAR P.V., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 01ST FEBRUARY, 2022 IN ORIGINAL SUIT NO.77 OF 2015
PASSED BY THE SENIOR CIVIL JUDGE AND JMFC.,
SIDLAGHATTA ON IA.NO.2, DISMISSING THE APPLICATION
FILED UNDER ORDER XXIII RULE 3(A) READ WITH SECTION 151
OF THE CIVIL PROCEDURE CODE, 1908 VIDE ANNEXURE-A; AND
ETC.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by defendants 2 to 4 in Original
Suit No. 77 of 2015 on the file of the Senior Civil Judge and
JMFC., Siddlaghatta (for short, hereinafter referred to as 'trial
Court'), challenging the order dated 01st February, 2022,
dismissing IA.2.
2. Relevant facts for adjudication of this writ petition are
that, the plaintiff has filed suit against the defendants, seeking
relief of specific performance of contract. During the pendency
of the suit, the parties to the suit have arrived at compromise
and they have filed compromise petition before the trial Court on
31st July, 2015 as per Annexure-B. The said compromise
petition was accepted by the trial Court on the same day.
Thereafter, defendants have filed an application on 21st March,
2018 before the trial Court under Order XXIII Rule 3(A) read
with Section 151 of the Civil Procedure Code to reopen/recall the
compromise petition filed by them, contending fraud and
mischief made by the plaintiff. The said application was
countered by the plaintiff by filing objection. The trial Court,
after considering the material on record, by its order dated 01st
February, 2022, dismissed IA.2 filed by defendants. Feeling
aggrieved by the same, defendants have preferred this writ
petition.
3. I have heard Sri. Chethan A.C., learned counsel
appearing for petitioners and Sri. P.V. Chandrashekar, learned
counsel appearing for respondent.
4. Sri. Chethan A.C., learned counsel appearing for
petitioners contended that though the defendants have signed
compromise petition before the trial Court, however, they have
not received Rs.4,30,000/- as agreed by the plaintiff before the
trial Court. Therefore, he contended that the plaintiff has
committed fraud against the defendant/petitioners herein.
Therefore, he sought for recalling the order dated 31st July, 2015
passed by the trial Court.
5. Per contra, Sri. P.V. Chandrashekar, learned counsel
appearing respondent contended that the compromise petition
was executed on 31st July, 2015 before the trial Court and
defendants were silent for nearly three years and thereafter,
they filed application on 21st March, 2018. Therefore, he
contended that the finding recorded by the trial Court is just and
proper which does not call for any interference in this writ
petition.
6. In the light of submission made by learned counsel
appearing for the parties, I have carefully considered the recitals
in the application filed under Order XXIII Rule 3(A) read with
Section 151 of the Civil Procedure Code at Annexure-B,
wherein, the plaintiff has filed suit for specific performance of
Agreement of registered Sale Agreement dated 20th October,
2014. In the said Agreement, it was stated that the total sale
consideration was fixed at Rs.6,80,000/-. On the date of
Agreement, the plaintiff has paid Rs.2,50,000/- to the
defendants and further agreed to pay remaining balance of
Rs.4,30,000/-. It is also stated in the compromise petition that
the plaintiff has received the balance consideration of
Rs.4,30,000/- before the Panchayathdhars and same was
recorded by the trial Court on 31st July, 2015. In the light of the
averments in the compromise petition, I have carefully
considered the application filed by the defendant/petitioners
herein as per Annexure-E, wherein, it is stated that the
defendants have denied about the receipt of balance on 31st
July, 2015. On perusal of paragraph 2 of the affidavit
accompanying IA.2 and taking into consideration the factual
aspects of the case that the petitioner/defendants have
approached the trial Court after 2½ years to recall the order
dated 31st July, 2015, I am of the opinion that the trial Court
taking into consideration the entire material on record, rightly
dismissed IA.2 filed by the defendant/petitioners under Order
XXIII Rule 3(A) read with Section 151 of the Civil Procedure
Code. In this regard, it is relevant to follow the law declared by
the Hon'ble Apex Court in the case of the RUBY SALES AND
SERVICES (P) LTD. & ANOTHER vs. STATE OF
MAHARASHTRA & OTHERS reported in (1994)1 SCC 531,
wherein at paragraph 15 of the judgment it is held that a
consent decree is a mere creature of the agreement on which it
is founded and is liable to set aside on any of the grounds which
will invalidate the agreement. The Division Bench of this Court
in the case of SMT. LAKSHMAMMA AND OTHERS vs. SRI.
T.H. RAMEGOWDA AND OTHERS reported in ILR 2015 KAR
4024, at paragraphs 15 and 16 of the judgment, has observed
as under:
"15. Order 23 Rule 3 of the Code mandates the
acceptance of the compromise by the Court should not be
mechanical. The parties may agree, they may reduce the
compromise into writing and place that compromise before
the Court. Unless the said compromise agreement is lawful,
the Court gets' no jurisdiction to pass a decree on the basis
of the agreement. Therefore, a duty is cast upon the Court
before passing a decree on the basis of the compromise, to
apply its mind, look into the terms of the compromise and
find out whether the agreement entered into between the
parties is lawful or not. If in its view, it is not lawful it shall
reject the compromise. Such a power is conferred on the
Court under Order 23 Rule 3 of the Code. But once the
compromise is recorded and a decree is passed in terms of
the compromise, then the presumption is the agreement is
lawful. A consent decree, is nothing but contract between
parties superimposed with the seal of approval of the Court.
16. The validity of a consent decree depends wholly on
the validity of the agreement or compromise on which it is
made. It is open to the parties to the compromise to show
that the agreement is not lawful and by misrepresentation,
fraud or mistake, they were made to agree to such
compromise. A consent decree operates as an estoppel and
is valid and binding unless it is set aside by the court which
passed the consent decree. The explanation to the proviso
says that an agreement or compromise 'which is void or
voidable under the Indian Contract Act....'shall not be deemed
to be lawful within the meaning of the said Rule. In view of
the said proviso read with the explanation, a Court which had
entertained the petition of Compromise has to examine
whether the compromise was void or voidable under the
Indian Contract Act. Then, if the compromise is not lawful, it
may be either invalid decree or a void decree. In either
event, unless, the compromise is challenged and a competent
Court declares it as invalid or void, the compromise is binding
on the parties."
7. Taking into consideration the law declared by the Hon'ble
Apex Court and this Court referred to above, I am of the view that
the consent decree operates as an estoppel against the
defendant/petitioners herein, so also, the application for recalling
the order dated 31st July, 2015, was filed after 2 ½ years, I am of
the view that the trial Court is justified in rejecting the application.
Accordingly, writ petition is dismissed as devoid of merits.
Sd/-
JUDGE
ARK
